FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of this ____ day of September, 2008, by and
between ALPHAMARK INVESTMENT TRUST (the "Trust"), an Ohio business trust having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ULTIMUS FUND SOLUTIONS, LLC ("Ultimus"), a limited
liability company organized under the laws of the State of Ohio and having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires that Ultimus perform certain fund accounting
services for each series of the Trust, listed on Schedule A attached hereto and
made part of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as the "Portfolio" and collectively as the
"Portfolios"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to act as the fund accountant of the
Trust and to furnish the Trust with the services as set forth below. Ultimus
hereby accepts such employment to perform such duties.
(a) MAINTENANCE OF BOOKS AND RECORDS.
Ultimus shall maintain and keep current the accounts, books, records and
other documents relating to the Trust's financial and portfolio
transactions as may be required by the rules and regulations of the
Securities and Exchange Commission (the "SEC") adopted under Section 31(a)
of the 1940 Act. Ultimus shall cause the subject records of the Trust to
be maintained and preserved pursuant to the requirements of the 1940 Act.
(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES.
In addition to the maintenance of the books and records specified above,
Ultimus shall perform the following accounting services daily for each
Portfolio:
(i) Calculate the net asset value per share utilizing prices
obtained from the sources described in subsection 1(b)(ii)
below;
(ii) Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Portfolio's investment adviser or its designee, as
approved by the Trust's Board of Trustees (hereafter referred
to as "Trustees");
(iii) Verify and reconcile with the Portfolios' custodian all daily
trade activity;
(iv) Compute, as appropriate, each Portfolio's net income and
capital gains, dividend payables, dividend factors, yields,
and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Portfolio prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
(vi) Determine unrealized appreciation and depreciation on
securities held by the Portfolios;
(vii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Trust;
(viii)Update fund accounting system to reflect rate changes, as
received from a Portfolio's investment adviser, on variable
interest rate instruments;
(ix) Post Portfolio transactions to appropriate categories;
(x) Accrue expenses of each Portfolio;
(xi) Determine the outstanding receivables and payables for all (1)
security trades, (2) Portfolio share transactions and (3)
income and expense accounts;
(xii) Provide accounting reports in connection with the Trust's
regular annual audit and other audits and examinations by
regulatory agencies; and
(xiii)Provide such periodic reports as the parties shall reasonably
agree upon.
(c) SPECIAL REPORTS AND SERVICES.
(i) Ultimus may provide additional special reports upon the
request of the Trust or a Portfolio's investment adviser,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties prior to the reports
being made available.
(ii) Ultimus may provide such other similar services with respect
to a Portfolio as may be reasonably requested by the Trust,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties prior to such
services being provided.
(d) ADDITIONAL ACCOUNTING SERVICES.
Ultimus shall also perform the following additional accounting services
for each Portfolio:
(i) Provide monthly (or as frequently as may reasonably be
requested by the Trust or a Portfolio's investment adviser) a
set of financial statements for each Portfolio as described
below, upon request of the Trust:
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Security Purchases and Sales Journals
Portfolio Holdings Reports
2
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise
tax returns;
(B) the Trust's quarterly and semiannual reports with the
SEC on Form N-Q, Form N-SAR and Form N-CSR;
(C) registration statements on Form N-1A and other filings
relating to the registration of shares;
(D) Ultimus' monitoring of the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended;
(E) annual audit by the Trust's auditors; and
(F) examinations performed by the SEC.
2. SUBCONTRACTING.
Ultimus may, at its expense and, upon at least 60 days' advance written
notice to the Trust, subcontract with any entity or person concerning the
provision of the services contemplated hereunder; provided, however, that
Ultimus shall not be relieved of any of its obligations under this Agreement by
the appointment of such subcontractor and provided further, that Ultimus shall
be responsible, to the extent provided in Section 7 hereof, for all acts of such
subcontractor as if such acts were its own.
3. COMPENSATION.
The Trust shall pay for the services to be provided by Ultimus under this
Agreement in accordance with, and in the manner set forth in, Schedule B
attached hereto, as such Schedule may be amended from time to time.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Ultimus' compensation for that
part of the month in which the Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
4. REIMBURSEMENT OF EXPENSES.
In addition to paying Ultimus the fees described in Schedule B attached
hereto, the Trust agrees to reimburse Ultimus for its reasonable out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
(a) All freight and other delivery and bonding charges incurred by
Ultimus in delivering materials to and from the Trust;
(b) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Ultimus in
communication with the Trust, the Trust's investment adviser or
custodian, dealers or others as required for Ultimus to perform the
services to be provided hereunder;
(c) The cost of obtaining security market quotes;
3
(d) All fees and expenses incurred in connection with any licensing of
software, subscriptions to databases, custom programming or systems
modifications required to provide any special reports or services
requested by the Trust;
(e) Any expenses Ultimus shall incur at the written direction of an
officer of the Trust thereunto duly authorized other than an
employee or other affiliated person of Ultimus who may otherwise be
named as an authorized representative of the Trust for certain
purposes;
(f) A reasonable allocation of the costs associated with the preparation
of Reports on Controls Placed in Operation and Tests of Operating
Effectiveness ("SAS 70 Reports"); and
(g) Any additional expenses reasonably incurred by Ultimus in the
performance of its duties and obligations under this Agreement.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of
the date first written above (or, if a particular Portfolio is not in existence
on that date, on the date such Portfolio commences operation) (the "Effective
Date").
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year periods.
This Agreement may be terminated without penalty: (i) by provision of
sixty (60) days' written notice; or (ii) for "cause" (as defined herein) upon
the provision of thirty (30) days' advance written notice by the party alleging
cause.
For purposes of this Agreement, "cause" shall mean: (i) a material breach
of this Agreement that has not been remedied within thirty (30) days following
written notice of such breach from the non-breaching party, (ii) a series of
negligent acts or omissions or breaches of this Agreement which, in the
aggregate, constitute in the reasonable judgment of the Trust, a serious failure
to perform satisfactorily Ultimus' obligations hereunder; (iii) a final,
unappealable judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (iv) financial difficulties on the part of
the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such
4
termination shall be immediately due and payable upon and notwithstanding such
termination. Ultimus shall be entitled to collect from the Trust, in addition to
the compensation described in Schedule B, the amount of all of Ultimus' cash
disbursements for services in connection with Ultimus' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents.
7. STANDARD OF CARE.
The duties of Ultimus shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against Ultimus
hereunder. Ultimus shall use its best efforts in the performance of its duties
hereunder and act in good faith in performing the services provided for under
this Agreement. Ultimus shall be liable for any damages arising directly or
indirectly out of Ultimus' failure to perform its duties under this Agreement to
the extent such damages arise directly or indirectly out of Ultimus' willful
misfeasance, bad faith, gross negligence in the performance of its duties, or
reckless disregard of it obligations and duties hereunder. (As used in this
Article 7, the term "Ultimus" shall include directors, officers, employees and
other agents of Ultimus as well as Ultimus itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of any instruction, notice or other
instrument that Ultimus reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of the Trust (other than
an employee or other affiliated persons of Ultimus who may otherwise be named as
an authorized representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may
consult with counsel for the Trust or its own counsel and with accountants and
other experts with respect to any matter arising in connection with Ultimus'
duties hereunder, and Ultimus shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with such instruction or with
the reasonable opinion of such counsel, accountants or other experts qualified
to render such opinion.
8. INDEMNIFICATION OF TRUST.
Ultimus agrees to indemnify and hold harmless the Trust from and against
any and all actions, suits, claims, losses, damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") arising directly or
indirectly out of Ultimus' failure to exercise reasonable care and diligence
with respect to its services; provided, however that Ultimus shall have no
obligation to indemnify or reimburse the Trust under this Article 8 to the
extent that the Trust is entitled to reimbursement or indemnification for such
Losses under any liability insurance policy described in this Agreement or
otherwise. Ultimus shall not be responsible for any retention amounts required
under such liability insurance policy.
The Trust shall not be indemnified against or held harmless from any
Losses arising directly or indirectly out of the Trust's own willful
misfeasance, bad faith or negligence.
5
9. INDEMNIFICATION OF ULTIMUS.
The Trust agrees to indemnify and hold harmless Ultimus from and against
any and all Losses arising directly or indirectly out of any action or omission
to act which Ultimus takes (i) at any request or on the direction of or in
reliance on the reasonable advice of the Trust, (ii) upon any instruction,
notice or other instrument that Ultimus reasonably believes to be genuine and to
have been signed or presented by a duly authorized representative of the Trust
(other than an employee or other affiliated person of Ultimus who may otherwise
be named as an authorized representative of the Trust for certain purposes) or
(iii) on its own initiative, in good faith and in accordance with the standard
of care set forth herein, in connection with the performance of its duties or
obligations hereunder; provided, however that the Trust shall have no obligation
to indemnify or reimburse Ultimus under this Article 8 to the extent that
Ultimus is entitled to reimbursement or indemnification for such Losses under
any liability insurance policy described in this Agreement or otherwise. The
Trust shall not be responsible for any retention amounts required under such
liability insurance policy.
Ultimus shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of Ultimus' own willful misfeasance, bad
faith, gross negligence in the performance of its duties, or reckless disregard
of its obligations and duties hereunder. (As used in this Article 8, the term
"Ultimus" shall include directors, officers, employees and other agents of
Ultimus as well as Ultimus itself.)
10. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Ultimus further agrees that all such books and records shall be the property of
the Trust and to make such books and records available for inspection by the
Trust or by the SEC at reasonable times and otherwise to keep confidential all
books and records and other information relative to the Trust and its
shareholders; except when requested to divulge such information by
duly-constituted authorities or court process. If Ultimus is requested or
required to disclose any confidential information supplied to it by the Trust,
Ultimus shall unless prohibited by law, promptly notify the Trust of such
request(s) so that the Trust may seek an appropriate protective order.
Nonpublic personal shareholder information shall remain the sole property
of the Trust. Such information shall not be disclosed or used for any purpose
except in connection with the performance of the duties and responsibilities
described herein or as required or permitted by law. The provisions of this
Section shall survive the termination of this Agreement. The parties agree to
comply with any and all regulations promulgated by the SEC or other applicable
laws regarding the confidentiality of shareholder information.
11. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
6
12. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by Ultimus are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. Ultimus may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
Ultimus' files, records and documents created and maintained by Ultimus pursuant
to this Agreement which are no longer needed by Ultimus in the performance of
its services or for its legal protection. If not so turned over to the Trust,
such documents and records will be (1) copied and made available to the Trust by
Ultimus as soon as reasonably practical, and (2) retained by Ultimus for six
years from the year of creation. At the end of such six-year period, such
records and documents will be turned over to the Trust unless the Trust
authorizes in writing the destruction of such records and documents.
13. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business on
the Effective Date, each Portfolio that is in existence as of the Effective Date
has authorized unlimited shares, and (2) this Agreement has been duly authorized
by the Trust and, when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
14. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) it will maintain a disaster
recovery plan and procedures including provisions for emergency use of
electronic data processing equipment, which is reasonable in light of the
services to be provided, and it will, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions (Ultimus shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided it maintains such plans and procedures); (2) this
Agreement has been duly authorized by Ultimus and, when executed and delivered
by Ultimus, will constitute a legal, valid and binding obligation of Ultimus,
enforceable against Ultimus in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
15. INSURANCE.
Upon request, Ultimus shall furnish the Trust with pertinent information
concerning the professional liability insurance coverage that it maintains. Such
information shall include the identity of the insurance carrier(s), coverage
levels and deductible amounts. Ultimus shall notify the Trust should any of its
insurance coverage be canceled or reduced. Such notification shall include the
date of change and the reasons therefor. Ultimus shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by Ultimus under its insurance coverage.
7
16. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Agreement and Declaration of Trust (the "Declaration
of Trust") and of any amendments thereto, certified by the proper
official of the state in which such document has been filed.
(b) Copies of the following documents:
(1) The Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified
officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct Ultimus
in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Portfolio.
17. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and Ultimus
may conclusively assume that any special procedure which has been approved by
the Trust does not conflict with or violate any requirements of its Declaration
of Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
18. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction. The Trust represents and warrants that no
shares of the Trust will be offered to the public until the Trust's registration
statement under the Securities Act and the 1940 Act has been declared or becomes
effective.
19. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; and if to Ultimus,
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇; or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
8
20. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
21. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
22. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust is on file with the Secretary of the
State of Ohio, and notice is hereby given that this instrument is executed on
behalf of the Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and property of the Trust (or
if the matter relates only to a particular Portfolio, that Portfolio), and
Ultimus shall look only to the assets of the Trust, or the particular Portfolio,
for the satisfaction of such obligations.
23. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ALPHAMARK INVESTMENT TRUST
By: __________________________
Its: President
ULTIMUS FUND SOLUTIONS, LLC
By: __________________________
Its: President
9
SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT BETWEEN
ALPHAMARK INVESTMENT TRUST
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
---------------
AlphaMark Large Cap Growth Fund
AlphaMark Small Cap Growth Fund
10
SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT BETWEEN
ALPHAMARK INVESTMENT TRUST
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES AND EXPENSES
-----------------
FEES:
Ultimus shall be entitled to receive a fee from the Trust on the first
business day following the end of each month, or at such time(s) as Ultimus
shall request and the parties hereto shall agree, a fee computed with respect to
each Portfolio as follows:
Base fee per year per Portfolio = $30,000, ($2,500 per month), plus
Asset based fee of:
------------------------------------------------------------
AVERAGE DAILY NET ASSETS ASSET BASED FEE
------------------------------------------------------------
First $500 million .010%
------------------------------------------------------------
In excess of $500 million .005%
------------------------------------------------------------
The above base fee assumes one class of shares. For a domestic Portfolio
that offers more than one class of shares, the base fee is $36,000 (two classes)
or $42,000 (three classes).
The above fee will be discounted by 20% during the first year and 15%
during the second year or until such time as the net assets of a Portfolio reach
$20 million, but in no case later than 2 years from the date of commencement of
operations for a Portfolio.
PERFORMANCE REPORTING:
For Performance Reporting (including After-Tax Performance Reporting),
Ultimus charges each Portfolio a fee of $200 per month.
OUT-OF-POCKET EXPENSES:
The fees set forth above shall be in addition to the payment of
out-of-pocket expenses, as provided for in Section 4 of this Agreement.
11